Mont. AG Seeks 30-Day Opening Brief Extension in TikTok Injunction Appeal

The Montana Attorney General's office needs a 30-day deadline extension to file the opening brief in its 9th U.S. Circuit Appeals Court appeal to vacate the district court’s preliminary injunction that blocks AG Austin Knudsen (R) from enforcing SB-419, Montana’s statewide TikTok ban (see 2401040002), said the office’s consent motion Wednesday (docket 24-34).

Knudsen's office is seeking an extension to March 1 “due to substantial need, including a number of preexisting deadlines in other cases,” said the motion. It cited five due dates for briefs or oral argument through Feb. 12, including a Feb. 9 deadline for filing an amicus brief at the U.S. Supreme Court in Murthy v. Missouri (docket 23-411) in support of the injunction sought by the Republican AGs of Louisiana and Missouri to bar federal officials from coercing social media platforms to moderate their content.

Attorneys for the five plaintiff-appellee TikTok users, plus TikTok itself, consent to the relief requested, “provided that they receive a reciprocal 30-day extension of time to file their answering briefs,” and Knudsen’s office agrees to that request, said the motion. Under the proposed new briefing schedule, Knudsen’s opening brief would be due March 1, and the appellees’ answering brief, April 29. Knudsen’s optional reply would be due 21 days after service of the answering brief, said the motion.

TikTok and the five individual user plaintiffs seek declaratory relief invalidating SB-419 and an order permanently enjoining Knudsen from enforcing the law, said their preliminary pretrial statement Tuesday (docket 9:23-cv-00056) in U.S. District Court for Montana in Missoula, where the preliminary injunction originated. The court has subject-matter jurisdiction because the two consolidated actions arise under the Constitution and federal law, said the statement. The court has authority to grant declaratory and injunctive relief, it said.

The five individual users “have large followings on TikTok and only a fraction of those followings on other platforms, such as Facebook, Instagram, and YouTube,” said the statement. The users can’t “meaningfully reconstitute their TikTok audiences on other platforms” if Montana bans TikTok, it said.

The First Amendment prohibits state laws that abridge the freedom of speech, said the statement. By banning a forum that plaintiffs and hundreds of thousands of people in Montana use to engage in constitutionally protected speech, SB-419 “unlawfully abridges one of the core freedoms protected by the First Amendment,” it said.

SB-419 is subject to First Amendment scrutiny because it bans a single means of expression used by the plaintiffs and several hundred thousand Montanans, said the statement. The statewide ban also prevents TikTok “from making editorial choices over what speech to allow on the platform,” it said.

SB-419 is subject to strict scrutiny because it bans speech before it can occur, said the statement. It also targets “a single medium of expression for disfavor,” and prohibits speech “on a content- or viewpoint-basis,” it said. SB-419 also abridges “the right to receive information,” it said. SB-419 fails strict scrutiny because it doesn’t further “a compelling state interest,” it said. It also isn’t “narrowly tailored” to achieve the state’s “asserted interests,” and isn’t “the least restrictive means” to achieve those asserted interests, it said.

Knudsen “reserves the right to argue standing as an affirmative defense,” said his own preliminary pretrial statement in the district court. He intends to seek discovery about the user plaintiffs’ use of TikTok and their “alleged injuries” resulting from SB-419, it said.

SB-419 is “a valid exercise of Montana’s police powers,” said Knudsen’s statement. The statute bans TikTok “because of the harm resulting from TikTok’s data-harvesting, data-storage, and data-access practices,” it said. Those practices constitute “nonexpressive activity and, among social media apps, raise unique concerns given TikTok’s links to the Chinese Communist Party,” it said.

Montana “reasserts” that SB-419 isn’t subject to First Amendment scrutiny, said Knudsen’s statement. But in the alternative, if SB-419 is subject to First Amendment scrutiny, it's subject “to no more than intermediate scrutiny,” it said. SB-419 applies to all speech on TikTok “without regard to its substance or message,” it said.

The state “has a significant government interest in protecting Montana consumers,” said Knudsen’s statement. Based on information from whistleblowers, congressional testimony and widespread reporting on TikTok’s failure to protect user data, the state “determined that TikTok posed a dangerous risk to Montana citizens,” it said. It has an interest “in eliminating, or at least minimizing, this risk,” it said.

SB-419 is “narrowly drawn,” said Knudsen’s statement. It bans TikTok within the state’s jurisdiction because it bans “the only social media platform with ties to the Chinese Communist Party,” it said. SB-419 doesn’t ban all online platforms, it said. It targets only “the precise source of the harms and no more,” it said: “Numerous alternative, unregulated channels of communication still exist.”